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Abstract

Most Americans own at least one “smart device.” These include smartphones and video game consoles. Device manufacturers limit an owner’s use of his smart device through both licensing agreements and technological measures. While the public largely ignores licensing agreements, the technological measures actively prevent an owner from using his device in whatever manner he sees fit, despite the fact that he owns the device. This prevention has led people to develop methods to circumvent these technological measures. These methods are device- dependent and include “jailbreaking” (iPhones), “modding” (video game consoles), and “rooting” (Androids).

This Note explores whether jailbreak developers or jailbreak users violate the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Congress passed the Act in response to the threat of criminals hacking into government or bank computers. As such, it makes little sense to apply the Act to people who want more freedom of use of their devices. A large number of smart device users employ some form of jailbreaking. The fact that the government could prosecute them under an anti-hacking statute for violating the licensing agreement for their devices, paves the way for many new and terrifying prosecutions.

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